Citation Nr: 9816393
Decision Date: 05/28/98 Archive Date: 06/03/98
DOCKET NO. 95-34 157 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Togus,
Maine
THE ISSUES
1. Entitlement to service connection for hepatitis.
2. Entitlement to service connection for a nervous disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
B. Lemoine, Associate Counsel
INTRODUCTION
The veteran had unverified active military service from June
1977 to February 1988.
The Board of Veterans' Appeals (Board) received this case on
appeal from a March 1995 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Boston,
Massachusetts, which denied the veteran's claims seeking
entitlement to service connection for hepatitis and a nervous
disorder. Following a subsequent change of address of the
veteran from Massachusetts to Maine, his claims file was
transferred from the Boston RO to the Togus, Maine, RO.
REMAND
Upon initial review of the evidentiary record, the Board
notes a VA Form 9 (substantive appeal) dated in September
1995, completed by the veteran’s representative, indicating
that the veteran desired a personal hearing before a hearing
officer at the Boston RO. Also of record is a request for
information from the RO to the veteran’s representative,
dated in March 1998, in which clarification was requested
regarding the veteran’s hearing request. In his April 1998
informal hearing presentation, the veteran’s representative
indicated that the veteran had requested a personal hearing
at the local RO and it was requested that the appeal be
remanded to afford the veteran such an opportunity. Given
the indication from the veteran’s representative that a
hearing is still desired by the veteran, the Board finds that
a remand is appropriate.
In addition to the above, the Board must note, in regard to
the veteran's claim seeking service connection for hepatitis
and a nervous disorder, that the claims were denied by a
March 1995 rating decision. The veteran submitted his notice
of disagreement (NOD) with that rating decision in May 1995.
He was provided with a statement of the case (SOC) as to
those issues in June 1995. As noted above, a VA Form 9 was
submitted by the veteran’s representative in September 1995.
That Form 9 indicated a desire for a personal hearing at the
RO, but made no mention or discussion of the issues of
entitlement to service connection for hepatitis and a nervous
disorder. That form was interpreted by the RO as a
substantive appeal to the March 1995 rating decision.
There were no further communications from either the veteran
or his representative indicating any desire to appeal the
issues of entitlement to service connection for hepatitis and
a nervous disorder, until a VA Form 646 (Statement of
Accredited Representation in Appealed Case) was received from
the veteran’s local representative in March 1998. In April
1998, the veteran was notified that his appeal was being
certified to the Board for appellate review.
The controlling law and regulations provide that an appeal
consists of a timely NOD in writing and, after an SOC has
been furnished, a timely substantive appeal. A substantive
appeal may be set forth on a VA Form 9 (Appeal to Board of
Veterans' Appeals) or on correspondence specifically
identifying the issues appealed and setting out specific
arguments relating to claimed errors of fact or law made by
the agency of original jurisdiction (the RO). To the extent
feasible, the argument should be responsive to specific items
in the SOC and any Supplemental SOC. The Board will construe
such arguments in a liberal manner for purposes of
determining whether they raise issues on appeal, but the
Board may dismiss any appeal which fails to allege specific
error of fact or law in the determination, or determinations,
being appealed. 38 U.S.C.A. § 7105(d) (West 1991); 38 C.F.R.
§ 20.202 (1997).
To be considered timely, the substantive appeal must be filed
within 60 days from the date that the AOJ mails the statement
of the case to the appellant or within the remainder of the
one-year period from the date of mailing of the notification
of the determination being appealed, or must be filed within
the extended time limits prescribed pursuant to a timely
filed request for extension of time. 38 C.F.R. §§ 20.302(b),
20.303 (1997). If the claimant fails to file a substantive
appeal in a timely manner, and fails to timely request an
extension of time, "he is statutorily barred from appealing
the RO decision." Roy v. Brown, 5 Vet.App. 554, 556 (1993).
See also YT v. Brown, 9 Vet.App. 195 (1996); Cuevas v.
Principi, 3 Vet. App. 542, 546 (1992). Cf. Rowell v.
Principi, 4 Vet.App. 9 (1993).
In assessing the adequacy of the veteran’s September 1995 VA
Form 9 as a substantive appeal, it is necessary for the Board
to discuss some other procedural developments within the
veteran’s claims file. In this regard, it is noted that the
veteran had submitted a claim, in August 1992, seeking an
increased evaluation for his service-connected left lateral
meniscectomy residuals. He also submitted claims, in
September 1992, seeking service connection for a right knee
disorder and right shoulder disorder. Those three issues
were denied in a March 1993 rating decision. The veteran
submitted an NOD pertaining to those claims in April 1993,
and was provided with an SOC in June 1993. A VA Form 9 was
submitted by the veteran in June 1993. That Form 9
specifically indicated the veteran’s desire to appeal the
issues regarding his left knee, right knee, and right
shoulder. Within that Form 9, the veteran also requested a
hearing before a Member of the Board at the local RO.
Notification of the scheduled hearing was sent to the veteran
in a letter dated in July 1993.
The record indicates that the veteran failed to report for
the scheduled hearing in July 1993. However, the record also
indicates that the notification letter was returned to the RO
as undeliverable. Subsequently, in September 1994, a report
of contact indicated a change of address for the veteran.
Another letter from the veteran’s representative, received in
March 1995, indicated that the veteran was using another new
address for correspondence, although he was actually residing
in a homeless shelter. In May 1995, the Board remanded the
issues of entitlement to an increased evaluation for the left
lateral meniscectomy and entitlement to service connection
for a right knee disorder and right shoulder disorder to the
RO. Among the Board’s reasons for the remand, it was noted
that the veteran had changed addresses frequently and it did
not appear he had received proper notification of his
requested hearing before a Member of the Board. The RO was
instructed to determine whether the veteran still desired to
appear for a Travel Board hearing and, if so, such a hearing
was to be scheduled.
Following the Board’s remand, in June 1995, a letter was sent
to the veteran from the RO asking that he clarify his wishes
regarding his hearing request. The Board notes that this
June 1995 letter was sent to the veteran in the same month as
the SOC regarding the issues of service connection for
hepatitis and a nervous disorder. Therefore, it now appears
to the Board that the Form 9 submitted in September 1995 was
not submitted in response to the June 1995 SOC regarding the
issues of service connection for hepatitis and a nervous
disorder. Instead, it appears that the Form 9 submitted in
September 1995 was in response to the June 1995 letter from
the RO, which was following the instructions of the May 1995
Board Remand.
In support of this conclusion, the Board would further note
that the request for a local hearing was submitted within the
Form 9 received in September 1995 and such a hearing was
scheduled for April 3, 1996. However, on April 3, 1996, the
veteran’s representative submitted a letter indicating that
he wished to temporarily withdraw his request for a hearing
so that further treatment could be sought regarding the right
and left knee. Subsequently, in April 1996, the veteran
withdrew his claim seeking service connection for a right
shoulder disorder. Also in April 1996, a VA Form 21-4138 was
received from the veteran, which indicated that he had been
advised of his rights regarding a hearing as had been
discussed in the prior Board remand, and at this time he was
not requesting a hearing. The veteran was again scheduled
for a hearing in March 1997, but the record indicates that
the request for the hearing was canceled and the appeal was
withdrawn by the veteran. Then, also in March 1997, the
veteran submitted a written withdrawal of his appeal
regarding the issues as to his left knee and right knee.
Therefore, it appears that the veteran’s September 1995
hearing request was for the purpose of providing evidence
regarding his left knee, right knee, and right shoulder, and
when the veteran subsequently withdrew his appeal regarding
those issues he also withdrew his hearing request.
Accordingly, when viewed in the context of all other
communications within the claims file, it appears to the
Board that the September 1995 VA Form 9 pertained to those
issues which were subsequently withdrawn by the veteran and
that there was no substantive appeal timely filed regarding
the issues of entitlement to service connection for hepatitis
and a nervous disorder. The subsequent Form 646 statement
received from the representative, which indicated a desire to
continue the appeal, was received in March 1998, well after
the expiration of the one-year period from the date that the
RO sent the veteran notice of its March 1995 rating decision.
Therefore, the inadequacy of the September 1995 VA Form 9 as
a substantive appeal and the untimeliness of the March 1998
Form 646 as a substantive appeal would appear to require the
Board to dismiss this appeal.
However, the Court has held that, when the Board addresses in
its decision a question that has not yet been addressed by
the RO, the Board must consider whether the claimant has been
given adequate notice of the need to submit evidence or
argument on the question, whether the claimant has been given
an adequate opportunity to actually submit such evidence and
argument, and whether the statement of the case provided to
the claimant fulfills the regulatory requirements as to
notice and opportunity to respond. See 38 C.F.R. § 19.29
(1997). If not, the matter must be remanded for the RO to
address the issue in the first instance, in order to avoid
possible prejudice to the claimant. Bernard v. Brown, 4
Vet.App. 384, 393 (1993); 38 C.F.R. § 19.9 (1997).
In this regard, the Board notes that this decision
constitutes the first occasion on which the veteran has been
notified that an inadequate and/or untimely substantive
appeal was filed concerning his claims seeking service
connection for hepatitis and a nervous disorder. He has not
yet been afforded an opportunity to present argument and/or
evidence on this question, nor has he been provided an SOC or
Supplemental SOC with respect to the issue of the timeliness
and/or adequacy of his appeal. Consequently, the Board will
remand the matter to the RO to avoid the possibility of
prejudice to the claimant. 38 C.F.R. § 19.9 (1997).
Accordingly, this case is REMANDED to the RO for the
following actions:
1. The RO should contact the veteran to
determine whether he still desires a
hearing before a Traveling Member of the
Board or a local hearing at the RO. If
appropriate, the RO should schedule a
hearing for the veteran before a
Traveling Member of the Board, or before
a local hearing officer.
2. Regarding the issue of whether the
veteran has timely perfected an appeal on
the claims of entitlement to service
connection for hepatitis and a nervous
disorder, the RO should advise the
veteran that his substantive appeal
appears to have been inadequately and/or
untimely filed, and give him the
opportunity to submit any argument,
evidence, or comment with respect to the
proper appellate status of the issues, as
well as the opportunity to request a
hearing on this matter if he so desires.
Then, if the determination is unfavorable
to the veteran, the RO should review the
record and issue him a supplemental
statement of the case on the question of
whether the denial of his claims were
properly perfected for appellate review.
The supplemental statement of the case
should contain a summary of the pertinent
facts and a summary of the laws and
regulations applicable to the proper
filing of appeals.
Thereafter, the veteran and his representative, should be
given the opportunity to respond to the supplemental
statement(s) of the case. The case should be returned to the
Board for further appellate consideration, if otherwise in
order, following appropriate appellate procedure.
By this REMAND the Board intimates no opinion, either legal
or factual, as to the ultimate determination warranted in
this case. The purpose of this REMAND is to further develop
the record and ensure due process to the veteran. No action
is required by the veteran until he receives further notice.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
ANDREW J. MULLEN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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